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What do the Government want to do—by this I probably mean the Executive rather than Parliament, but Parliament is to a certain extent covered as well? They say that they want proactively to protect people from harm. That sounds good—it is a very laudable intention—but who is going to harm them? Is it a bad guy out there, or some little inspector or regulator who is going to destroy their career through some rule in the future? Sometimes the Government can be the most dangerous person to deal with. Was it not Reagan who said that one of the most terrifying things for a small business to hear is: “We’re from the Government and we’re here to help you”?

I shall deal with two aspects of this question: first, with the sharing and amalgamation of data. There is a great belief that sharing and amalgamating data across large government systems will deliver useful results

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and help people. The second aspect is legitimate access to those data. I shall revisit the Regulation of Investigatory Powers Act regulations because they are no longer fit for purpose. I hope that the Government may come back to us with some sensible suggestions with checks built in—I shall deal with that later.

We in Parliament should be interested in the efficient, effective enforcement of our laws, but the trouble is that we pass the laws in principle and then hand over responsibility to the Executive to produce statutory instruments and rules which dictate what happens. We all know the old saying about rules: “Rules are made to be broken”. We say it because it is impossible in this complex world, with its complex human relationships, to define every single thing that exists. A lot of mathematical chaos theory shows that rules cannot be used to control a complex system, yet we mistakenly think that to run a good bureaucracy and provide certainty—for example, that one will get one’s passport on time or that things will run smoothly—one can apply them to all the interactions in human life. One cannot. This comes down to the problem of big databases and data-mining across them.

At the end of the day, the rules will be used by inspectors. We all know what inspectors are like: they believe in level playing fields—they are quite right to do so because the world should be fair. They think that you have to obey the rules absolutely so that they apply to everyone. However, we know that human life is too complicated for that. We know that the watchwords should be “flexibility”, “understanding”, “interpretation”, “intention”, “impact”, “outcome” and “empathy”. They will help people, Britain and all the other aspects of society move forward. Instead of that, one gets the little Hitler. When we talk about these things in Parliament, we do so as if reasonable people are the enforcers. Reasonable people are not good enforcers—they break too many rules and are too understanding—but the good enforcers will destroy everything that you think is good. We have to get that balance back again.

We are talking about balance and protecting people. RIPA falls into three parts. There is the reverse-look-up bit: you want to find out who someone is; there is a telephone number; you have got to look it up; it is no big deal; it is just a reverse directory inquiry look-up. There are no great protections against that and I am not very worried about it. Self-authorisation is fine. However, the problems arise when it comes to the second aspect, traffic data. Who called whom for how long? Those data give you a feel for the significant connections. You can build up quite an accurate pattern of someone’s life if you data-mine intelligently. Yet local councils can self-authorise for some of those data.

The final aspect is surveillance, which local councils are using RIPA to carry out. At the moment, they are carrying out physical surveillance, but let us not imagine that that will not extend to electronic surveillance very soon if it has not already done so. Let us take an example from the other day, of Poole borough council and the school catchment area case. Someone filled in a form. The council felt that they had got it wrong, so it watched them for five days, at the end of which it found out that they had not been telling lies. However, the children became aware of it. One can imagine the

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bad effect of that on individuals. Perhaps one could say that it would have been better to do it electronically and monitor all the mobile telephones in the house to see where they were. However, how many noble Lords are registered for the congestion charge in London? Have they looked up the rules for how many nights they can spend in London? Do they not think that it would be fair for Capita to do some data-mining on their mobile telephone location records to find out whether they have spent the correct statutory amount of time in London or whether they are one day short over the year, at which point, they must of course, because they have been a burden on the public purse, be fined and possibly locked up?

The point is that we have got the proportion wrong. We are criminalising too many things. You get a criminal conviction for leaving your dustbin lid four inches open. You get a criminal record for trivial things like a playground fight. You get a criminal record for stupid things that we do not think are criminal. The law needs to align itself with what is criminal and what is not. Until we do that, we cannot unleash automatic systems that decide who they will convict. That is my first point.

One big thing that you cannot do is to retrofit security into a complex system. If you design it from the start and work out where your boundaries, firewalls and stop lines are, what is permissible and what is not, you can do it. Under the Communications Data Bill, which will come to us soon in order to implement part of an EU directive, they will be able to keep a record of all the websites that you visit on the internet, once they have fitted the net-flow equipment. The information will go to the Home Office, along with all your telephone stuff. At the moment, they have to go to the individual telcos to find out who you rang and when; and it goes through a process where someone checks that the request is valid. If this all goes into one central Government-controlled vault—it will slip through somewhere in the small print of a Bill that you are not interested in, or in a statutory instrument that you have to vote out in its entirety, and are you really going to go to the wall for that?—then suddenly they will be able to data-mine it.

There is stuff out there now that looks at business relationships and relationship trees—who you know and who you might know. On this subject, I warn noble Lords that they are all two jumps away from Osama bin Laden. I thought that I was four jumps away from him, because I sat on a committee with someone whose brother-in-law was married to his first cousin. At the end of my little talk, someone came up to me and said, “I’m terribly sorry, Merlin, I taught him English when he was young”. So I am one jump away and noble Lords are two.

That sounds silly, but noble Lords will know how the press says, “Queen’s fifth cousin caught for drugs”. This is the next thing that worries me: police targets. When police come under pressure, they have to produce someone, so they look for relationships that may or may not exist. This is the trouble: you get some keen investigator looking for things. You can see how he could draw inaccurate inferences that implicate an individual incorrectly. You take that through to someone

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else and then put it to the Home Secretary, so that it comes under the Anti-terrorism, Crime and Security Act. You do not have enough evidence to go to court, but it is enough to confine them to barracks, to their home, and cut them off from human contact. That worries me.

I like to keep stuff in silos, because you get extra firewalls and extra checks in there. We need to make sure that stuff is encrypted and that only the right people have the authorisation to get in there. With Varney rippling out and sending one’s address all over government, we have to be careful. I have spoken to some people and I think that they are absolutely on the right lines in making sure that stuff is secure. However, we need to ensure that it covers not just obvious things, but also unobvious things that become significant later.

At the moment, the Government are saying, “Trust us, we will look after it, you have no problems”. However, it will not take much for that trust to break down. We must keep the trust there. I talk a lot to various groups about CRM—customer relationship management. It is when the people at the centre—the local authority or whoever—manage your query or problem in the way that they think it should be managed. People now talk about VRM, vendor relationship management, where you, the citizen, decide who you want to interact with and how much you are going to tell them. That way you are responsible for your own stuff. If you make a mess of it, so be it; at least you are in control. There are some people who cannot be, and here we come to the real world. Some people need to be looked after, but most of us do not. We have lived for a very long time in a common law system where we take responsibility for our own lives. We should go back to that and stop trying to be protective.

The problem, when things go wrong, is the repair part; how you recall it, how you repair it, how you rescue things—how you get your credit rating back, how you get your reputation back. It is very difficult. Until we solve that, we have to be very careful about how we concentrate everything in one place.

Many things that the Government want to achieve can properly be done by anonymisation. There are technologies out there that can anonymise totally—although they can be reverse engineered in certain critical situations. We could bring in RIPA Part 2 and specify that, instead of a system of self-authorisation, you have to do it properly and go out to a second party. If you are a local authority wanting to look at who someone has been talking to, you have to go to a policeman to authorise it. The police will be willing to do it. If you are the police, you go to a magistrate. This was how we always worked it. We had an outside body checking. We should go back to that. With reverse anonymity, you go to a judge and say, “We have detected the probability of something very serious here and need to reverse engineer this to find out who was involved”. There are lots of technical ways in which these things can be done, but we must engineer in safeguards at the start. We must not rush into this. We must not build things that we will regret in five years’ time. I know from history that every time you hand over too much power to the state, things go wrong.

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My last point is that the people who look after us, who try to protect us—such as the Information Commissioner, the Interception of Communications Commissioner and the Surveillance Commissioner—should report to Parliament and to somewhere outside any other executive line of reporting. Otherwise, you do not have proper procedure. All of that is complicated. You have to remember that there is not just one bad guy or one good guy. There are bad guys inside the system and good guys outside. We need to make sure that we protect our people in future.

3.29 pm

Lord Roberts of Llandudno: My Lords, I am grateful to my noble friend Lady Miller for giving us the opportunity to speak in this debate. There are so many areas of concern relating to data. Recently, 25 million records were lost, which is incredible. A laptop was stolen and more data were lost, and, only this week, we heard about the missing data on the train. We have had all those situations. Sometimes, there is deliberate lawbreaking. There are hackers who can find out a great deal about us, such as our bank details and identities, and that can lead to fraud. At other times, it is pure human error, and we are all capable of that. It is not the conspiracy but the cock-up that causes so much difficulty.

I sometimes feel as though privacy is nearly something of the past. They tell me that if I walk around London I will be photographed by a CCTV camera about 300 times in a day. Gosh, I hope that I am behaving myself when the camera catches me. Then you see the cross-referencing of information. I did something that I should not have done this year: I renewed my car tax by telephone. I did not go to the post office. Many post offices no longer deal with car tax. That is another thing that we should continue battling for. The people that I was dealing with knew nearly everything about my car. They knew me and then they cross-referenced something else on the database and knew the make of the car and whether it was insured. They also knew whether it had an MOT. There was all that cross-referencing and you wonder sometimes how far that cross referencing goes. How secure are you? How undermined is your own privacy with all these databases that can be linked one to the other. Then there are private businesses. Somebody phones you up and they want to know where you live and all they need is your postcode and then the whole cross-referencing starts again. There is already that danger.

My noble friend mentioned the national staff dismissal register, which is ominous. Action Against Business Crime was set up with Home Office backing and we know that even today the Home Office logo is still on that particular organisation’s literature. The Home Office backed Action Against Business Crime. I received an Answer on 22 May that more than £1 million was contributed between 2004-07 to set up and maintain that organisation. Under the auspices of that organisation, you have the national staff dismissal register. Although the Home Office—which I take at its word—says that it will not be involved in any way with its operation, the logo is still there. The original sponsorship is still there, which the Home Office backed.

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The register is used by employers when they are vetting applicants for jobs. They can see not only whether there is any criminal record or offence that could be punished in a criminal way, but if there is any suspicion—not proof. The person might have been dismissed not because of any theft or fraud, but often because of rumours and unfounded suspicion. If we go back to human error, how often is incorrect information or unfounded rumour included in a person’s data?

How often is there a miscarriage of justice? When that happens, you may be recorded by one company as having been suspected of something. Maybe the person was a Methodist Minister who preached non-Wesleyan theology—that happens sometimes. Then you are suspected. That can be recorded against you. If you tried to get another job someone might say, “He is not sound; he is suspected of something”. People's lives, and more seriously in some ways, their livelihoods, can be jeopardised.

I am not going to mention the private companies which already contribute to the national staff dismissal register, but they include some of the best-known names in the kingdom. Representing many thousands of employees, they have signed up to—and use—this database. It is open to abuse. I know that one of the companies, a shop mentioned on the database, does not have a great deal of good to say about the Royal Family. I do not know what would happen if they suggested that a member of the Royal Family was under suspicion. These are unfounded rumours. There is no basis for the allegations. There might be dislike of an employee, and even the possibility of blackmail. The most vulnerable people who come to these shores are those likely to be misunderstood and blacklisted in this way. People who might not understand English or know their rights could be at a tremendous disadvantage if their names were included on this register.

What influence—I would not use the word “control”—does the Home Office have over the national staff dismissal register? What information about their rights is given to employees when they are taken on by one of the companies that are part of this network? What steps is the Minister taking to ensure that employers do not abuse the register? Will employees be able to take legal steps to have their names removed and, if falsely accused, sue for defamation? What information is given to them? What control do the Government have to ensure that nobody is ill-treated or abused under this scheme? Why is the Home Office logo still on this literature?

I express another cause for concern, of which I have spoken previously in this House; namely, the passport personal interviews. Sixty-eight or 69 permanent offices have been established to interview people face to face, for the first time, when they apply for a passport. About 600,000 passports are applied for each year. This is to stop terrorist activity or anything of that nature. These permanent offices have facilities to take one’s photograph. As time goes on and these offices become the network for identity cards, fingerprints, and possibly iris scans, will be taken there. This is all part of the Government’s proposals. How secure are these databases? How secure will the national identity card database be? We are already told that people are

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issued with the wrong passport. I read that somebody had been sent somebody else’s personal details instead of a passport. There are many human errors.

My final concern is over what happens where there are not enough applicants for a permanent passport interview office. Then there will be a remote-area interview facility, which will use a webcam. Possibly a council office will be available. The applicant will go there and be photographed, but how will their fingerprints be taken, and their iris scans obtained? I think it will be impossible to do that by webcam. We will have a database that is totally unfit for purpose and does not give those who are interviewed remotely the same record as those in permanent passport interview offices. Places where remote-area interviews will be carried out include Arran, Bute, the central Highlands, Orkney, Pembrokeshire and north Anglesey. They will have these remote facilities. Can the Minister give us assurances on these facilities, as well as on the national staff dismissal register, before giving them additional support or encouragement? The more surveillance we have, the more mistakes we can make. The more mistakes that we make, the more innocent people will suffer.

3.40 pm

Baroness Walmsley: My Lords, I congratulate my noble friend Lady Miller of Chilthorne Domer on introducing this important debate and on her excellent speech. It is great pity that the other parties did not believe that this matter was very important. I share the disappointment of the noble Earl, Lord Erroll, on that and I thank him for his interesting contribution.

Few subjects can be more important than the freedom and integrity of the individual, which is what we are talking about in this debate. On the “Today” programme this morning, the noble and learned Lord, Lord Goldsmith, spoke movingly in an interview on the 42-days issue about the importance of our fundamental freedoms, which we have enjoyed in this country for hundreds of years, and the danger of destroying them. Our identity and the integrity of our personal information fall into that category; we must protect them from an overintrusive, meddling and incompetent Administration. Sadly, the human rights group Privacy International rates Britain, along with China and Russia, as an “endemic surveillance society”.

There are five main issues about which we should have concern. We have heard about them all during this debate. They are: first, the sheer magnitude of the information held about us; secondly, the fact that there are some people, such as children, whose information is held on databases with no justification at all, not even a proportionate response to need or threat; thirdly, the demonstrably poor security of the information—as we have just heard in the Statement, the Government cannot even trust the competence of senior officers in the Cabinet Office to protect sensitive information; fourthly, the question of knowledge, consent and ability to opt out; and, fifthly, the lack of adequate powers and funding of the Information Commissioner to protect the individual from this intrusion by the state and commerce. I shall take those one by one.

The first is the magnitude of the problem. A report in April this year from Richard Thomas, the Information Commissioner, said that the public need to be made

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more aware of the “creeping encroachment” on civil liberties created by e-mail monitoring, CCTV and computer tracking of our buying habits. One of the concerns in the report is the use of special listening devices that can be placed in lamp posts, street furniture and offices. More than 300 cameras with built-in microphones have been fitted in benefit offices and city centres. Westminster City Council has already started piloting the listening devices, but experts say that the use of these microphones raises questions about how surveillance can be used to intrude into the private lives of citizens. An official report by the commissioner has revealed that nearly 800 public bodies are between them making an average of nearly 1,000 requests a day for communications data, including phone taps, mobile phone records and e-mail or web-search histories, not to mention old-fashioned snail mail.

Unlike in the vast majority of European democracies and the US, in the UK bugging and telephone wire taps can be set up without recourse to a judge The Home Secretary authorised more than 3,500 operations of this sort in 2005-06. A massive government database holding details of every phone call, e-mail and time spent on the internet by the public is being planned as part of the fight against crime and terrorism. In light of the various security breaches, of which I will say more, there will be concern about the ability of the Government to manage a system holding billions of records. About 57 billion text messages were sent in Britain last year, while an estimated 3 billion e-mails are sent every day.

Brussels officials are considering controversial anti-terror plans that would collect up to 19 pieces of information on every air passenger entering or leaving the EU, which already supplies that information to the United States, as my noble friend Lady Miller mentioned. Britain has 4.2 million CCTV cameras—one for every 14 people. As my noble friend Lord Roberts said, each person is caught on camera an average of 300 times every day. I, too, hope that he was behaving himself. The Royal Academy of Engineering has warned that, if a national standard for CCTV cameras were created, it would make it possible for all information gathered by these cameras to be shared and accessed by anyone with the means to do so.

Then there is the DNA database. Britain’s is purported to be the largest in the world. Approximately 2.4 million people have their DNA permanently retained on the NDNAD, which is alleged to contain more than 100,000 DNA samples taken from children who have never been charged or convicted with any crime. Black and ethnic minority males are overrepresented on it.

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